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Obama’s Bad Brief

Last week the Obama administration filed an amicus briefwith the Supreme Court in Fisher v. University of Texas, supporting the school’s use of racial and ethnic preferences in undergraduate admissions.


The brief is riddled with contradictions. It argues that the University of Texas was not trying to achieve proportional representation in a way tied to the state’s demographics, but then argues repeatedly that it was perfectly all right for the state to do exactly that. It argues that such proportional representation is extremely important, but then suggests that race is weighed so lightly that it is apparently just an accident that this representation comes about. It argues that the university is not pursuing “classroom diversity,” but then quickly concludes that “the university’s consideration of classroom-diversity figures is therefore entirely consistent with [the Court’s earlier decision in] Grutter.”

A big chunk of the brief is devoted to documenting that the Obama administration itself likes diversity in its own programs: in the military, in law-enforcement and national-security hiring, and in training health-care professionals. The Bush administration, at oral arguments in the University of Michigan cases in 2003, denied that the military thought that our enlisted men would follow their officers only if they had the right skin color, and rightly so. It’s also very unclear what the connection is between those the federal government hires and trains, and what the racial makeup of their school was (that is, even if the Obama administration loves hiring quotas, that doesn’t mean that schools have to have admissions quotas).

It’s unlikely, by the way, that the federal government is allowed to discriminate in its employment practices, even if universities are allowed to discriminate in their admissions; different statutes apply. In any event, the brief is focusing on very specialized jobs (the brief rightly puts the Department of Commerce’s claim that it “has an interest in . . . promoting diversity among the leaders of commercial enterprises” in a footnote), and hardly justifies racial preferences in undergraduate admissions.

There’s also a great deal that is not in the brief. In particular, the main objections to racial preferences are simply ignored. For example, the increasing problem of discrimination against Asian Americans is relegated to one technical footnote. The word “mismatch” does not appear in the brief at all (this is a particularly glaring omission given the fact that the brief emphasizes the need for more “diversity” in the health-care professions, yet the mismatch problem has been shown to be particularly severe in the STEM area). It is especially odd that the increasingly obvious costs of racial preferences are ignored, when the brief concedes that there is a problem if the “costs [of the use of racial preferences] outweighs its benefits.”

President Obama, in the context of the Boy Scouts this month, issued a statement that said “he opposes discrimination in all forms.” That’s not true.

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Two related items.

First — and very  predictably — big business has likewise weighed in on behalf of racial preferences in Fisher v. University of Texas, also filing an amicus brief with the Supreme Court in the case.

Predictably, because in 2003 a similar consortium “of America’s largest companies” filed a similar brief with the Court in the University of Michigan cases. Predictably, because corporate America has long decided that paying obeisance to “diversity” is prudent politics in a world filled with Al Sharptons, plaintiffs’ lawyers, and politically correct civil-rights agencies. Predictably, because there are now large corporate bureaucracies headed by folks with “diversity” in their titles, whose salaries depend on this nonsense.

Nonsense, because hiring with an eye on skin color has no logical, empirical, legal, or moral justification.

You can read my more detailed analysis of the business brief here.

And second, last week I discussed the Fisher case and affirmative action on a Boston-area National Public Radio show.  (An opposing guest was the dean of admissions at MIT.) You can listen to the show here.

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One last thing, speaking of universities and racial preferences: Charles Johnson has an interesting piece on Michelle Obama’s ideological roots in this area here.